The Missing Element: Florida Caselaw, Week of October 2, 2026

August, twenty twenty-three. Just before five in the morning, a woman in a Clay County apartment complex calls 911. Someone just tried the knob on her door. She’s watching him on her Ring camera. Black male, dreads, black t-shirt, red pants.

Five minutes later, deputies find a man who matches. He walks right up to them. He isn’t running, he isn’t sweating, and he isn’t carrying anything you’d use to break into an apartment. What he is carrying is two large snakes, a boa constrictor and a ball python, draped around his neck and shoulders. He tells them he’s taking his snakes for a walk to the pond. The deputies surround him and tell him he isn’t free to leave. He swears at them and tries to walk away, and a deputy tases him.

Nobody ever charged him with burglary. He was convicted on two counts of resisting an officer without violence. This week the Fifth District threw those convictions out, because a description that fits is all the deputies ever had.

I’m Rory Safir, and this is Reasonably Safir.

This one is the caselaw edition: the decisions Florida’s appellate courts handed down this week, case by case, for the lawyers who’d rather hear them than read them.

This one is late, and that’s on me. I was in San Antonio last week speaking at the DUI Defense Lawyers Association conference and didn’t get it out. These are the opinions from the week of October second.

Here’s the thing about this week. Almost every opinion that matters turns on an element somebody skipped. The lawful duty in a resisting charge. Knowledge, in a statute that never mentions it. The letter of a court order, as opposed to its spirit. The defendant’s presence when the judge picks a number. And on the injury side, a punitive damages proffer that had to be built one defendant at a time. So that’s the theme. The missing element. Let’s get into it.

The first case is the one I opened with. Holliday against the State, Fifth District, out of the Clay County Court, Judge Forbess below. Judge Makar wrote it, with Judges Wallis and Edwards.

The trial judge found, correctly, that this was an investigatory stop: three or four deputies circled him and told him he couldn’t leave. The judge found the stop well founded and convicted him at a bench trial on two counts of resisting without violence.

Resisting without violence has two elements. The officer has to be engaged in the lawful execution of a legal duty, and the defendant has to obstruct or resist that duty. The Fifth District’s point is that an unlawful stop isn’t the lawful execution of anything. So the case came down to whether the deputies had reasonable suspicion when they seized him.

They didn’t. By one deputy’s own admission, they had no other information besides the dispatch: black male, dreads, red shorts, black shirt. No height, no weight and no age. They did no fact finding before they detained him. He approached them, he wasn’t nervous, and he had two snakes the caller never mentioned. The court leaned on an old First District case, R.E., for the line that corroborating innocent details of identification helps single out the suspect, but it doesn’t create a suspicion that crime is afoot. The deputies could try to talk to him. They couldn’t seize him. Reversed, with directions to enter a judgment of acquittal.

Two things for your files. First, when your client is charged with resisting without violence out of a stop, the stop is an element. You don’t need a motion to suppress to win it. You can win it on a judgment of acquittal, which is exactly how this one was won. Second, look at the gap between what the caller said and what dispatch broadcast. She reported someone trying a doorknob. Dispatch sent it out as a burglary in progress. The deep dive at the end is about exactly this question: when is a 911 call enough to stop someone. Hold that thought.

The next case is the hardest one of the week, and it’s the most important. Jewell against the State, First District, out of Baker County, Judge Slaughter below. Judge Roberts wrote it, Judge Bilbrey joined, and Chief Judge Osterhaus concurred in part and dissented in part. The opinion opens with this line: this is the most tragic of cases.

The defendant was a nanny in Macclenny, a trusted caregiver for several local families. On a July morning in twenty twenty-three, a ten-month-old girl was strapped into her car seat in the back of the nanny’s Tahoe, and the nanny drove to another family’s home to watch their kids. She went inside with her phone, a cup and a snack. A little after one in the afternoon, the baby’s mother arrived to pick her up. The baby had been in the car for five hours, and she died of hyperthermia. Her defense was that she forgot the baby was there. A witness described her crying, vomiting and repeating that she forgot.

The State charged aggravated manslaughter of a child by culpable negligence. Then it added two more counts: leaving a child unattended in a motor vehicle causing great bodily harm, under section 316.6135, and third-degree felony murder with that unattended-child count as the underlying felony. The jury acquitted her of manslaughter. It convicted her on the other two. Fifteen years on the felony murder and two consecutive on the unattended-child count. Seventeen years.

The trial judge read the unattended-child statute as strict liability. Leave the child in the car more than fifteen minutes, great bodily harm results, and you’re guilty whether you knew the child was there or not. The judge refused a special instruction on knowledge, gave the standard instruction, and the State told the jury it didn’t have to prove intent.

The First District reversed. Silence in a criminal statute isn’t proof the Legislature meant to dispense with a mental state, and Florida’s own cases, Chicone and Giorgetti, say some indication of legislative intent is required before a court reads mens rea out. The word that carried it was leave. One meaning is simply to go away from. The other is to cause or allow something to remain in a state, which implies a decision. The court read leave the second way, so the State has to prove she knowingly left the child unattended. And it pointed out that this statute started life as a noncriminal traffic infraction punishable by a fine. Without a clear statement, the court wasn’t going to turn that into a strict liability felony carrying five years.

Then felony murder. Because the predicate count fell, the murder count fell with it. But the court went further and said that even under the State’s reading, it would still reverse, because third-degree felony murder can’t rest on an unenumerated predicate felony that doesn’t require any proof of intent. It quoted the Florida Supreme Court in Mahaun from nineteen seventy-nine: intent to cause death isn’t an element of felony murder, but the intent requirement of the underlying felony must still be proven. Stacking the charges this way, in the court’s words, got the State a murder conviction on her admissions alone, without any proof of intent. New trial on the unattended-child count only, with a properly instructed jury.

The Chief Judge would have affirmed that count. He looked at the structure of chapter 316 and the twenty oh seven floor debate, where legislators argued openly about whether the bill would make criminals of forgetful parents, and concluded the Legislature chose strict liability on purpose. He also compared it to DUI manslaughter, which requires no particular mental state.

Three practice points. First, the standard jury instruction isn’t a safe harbor. The defense asked for a special instruction on knowledge and moved for acquittal on that ground twice, and that record is why there was something to reverse. Second, when you see third-degree felony murder stacked on top of a regulatory felony, read Mahaun and read Jewell. Third, a word of caution on the DUI side. Both opinions treat DUI as the strict liability exception in chapter 316, so don’t expect Jewell to help a DUI manslaughter client on mental state.

And one footnote you already know from the last episode. The defendant also lost her six-person jury argument, and the court noted that the U.S. Supreme Court granted review of that exact issue in June, in Kian. If you’re trying a felony in front of six, object and ask for twelve.

The next case is a direct fight between two districts, and if you practice in the Second District, like I do in Sarasota, Manatee and Pasco, you need to know it. Weber against the State, First District, out of Alachua County, Judge Davis below, Judge Winokur writing.

Weber pleaded no contest to exploitation of an elderly person, fifty thousand dollars or more. His lowest permissible sentence was thirty-four and a half months, and the maximum was thirty years. He asked for a downward departure on two statutory grounds: the need for restitution outweighs the need for prison, and an unsophisticated, isolated offense for which he showed remorse. The judge rejected the restitution ground, never mentioned the other one, and sentenced him to twelve years. And the judge told him, quote, you deserve more.

On appeal, Weber relied on the Second District’s line of cases, Williams, Manyak and Dawson, which reverse when a judge denies a departure without making clear on the record that it applied the two-step analysis from the Florida Supreme Court’s Banks decision: first, can I depart, and second, should I. The First District affirmed, and it took the Second District on directly. Its reasoning: the statutes require a written explanation when a judge departs, and nothing requires an explanation when a judge doesn’t. Banks described the statutory process, it didn’t add requirements to it, and the Second District’s approach applies what the court called a presumption of incorrectness, making the trial judge defend a decision not to depart. The court also repeated its own rule from Gazoombi: proving a mitigator only drops the floor of the range to zero. It creates no entitlement to a lower sentence.

So here’s where that leaves you. In the First District, you won’t get a reversal because the judge said nothing about your departure grounds. In the Second, Williams and Manyak are still the law your trial judge follows, and one of the Second District cases the First District criticized, Kezal, was a DUI manslaughter case where the judge called the offense inherently unsophisticated and declined to depart. Everywhere else, you now have two districts pointing in opposite directions. Wherever you are, make the record yourself: ask the judge to rule on each ground, out loud, before the sentence is pronounced.

The next case is Mc Taw against the State, Third District, out of Miami-Dade, Judge Areces below, Judge Lobree writing. A probation revocation affirmed, and a twenty-five-year sentence reversed for resentencing before a different judge.

The defendant was on probation for sex offenses with a ten p.m. to six a.m. curfew. The probation officer filed an affidavit for a curfew violation. At the hearing, she also testified about two earlier violation affidavits she had filed and then withdrawn. The defense objected and was overruled. Because he qualified as a violent felony offender of special concern, the judge had to decide whether he was a danger to the community. In finding that he was, the judge pointed to the two prior violations that had been filed and withdrawn, and said he wasn’t amenable to sanctions short of prison. Twenty-five years as a habitual offender.

The Third District said a judge may consider the primary offense and the defendant’s record, but subsequent misconduct, or pending or dismissed charges, are constitutionally impermissible factors at sentencing. A withdrawn affidavit is in that category. And because the judge plainly relied on it, the remedy is a different judge. When a probation officer starts talking about affidavits that went nowhere, object, and get the objection on the record before the danger hearing begins.

The next case is short, and I want you to remember it the next time a resentencing hearing gets set without your client. Ganga against the State, Fifth District, out of Lake County, Judge Heidi Davis below, Judge Wallis writing.

After a jury convicted Ganga of attempted second-degree murder and related counts, the State itself filed a motion to correct the sentence, because the total exceeded thirty years. The judge held a hearing, Ganga wasn’t there, and his lawyer announced he would waive his client’s presence. The judge resentenced him. The State then conceded error on appeal, and the Fifth District agreed. Under rule 3.180 and the Florida Supreme Court’s decision in Jordan, the defendant has the right to be present at resentencing unless it’s purely ministerial. This one wasn’t, because the judge could have imposed anything from twenty-five to thirty years. And a lawyer’s oral waiver didn’t establish that the defendant himself knowingly and voluntarily gave up the right. The court also struck a two hundred fifty dollar fine under section 775.083, because a discretionary fine has to be announced at sentencing, and this one never was. Don’t waive your client’s presence for him. If there’s any discretion left in the number, he needs to be in the room.

One rule change on the criminal side, and it took effect immediately. On October first, the Florida Supreme Court amended rule 3.190(d)(2). That’s the motion to dismiss arguing there are no material disputed facts and the undisputed facts don’t establish a prima facie case of guilt, what a lot of us still call a c-four motion. Last year, in a set of amendments that took effect in July, the Court had removed the requirement that the facts be sworn. After comments, it put the requirement back. The rule now says the facts on which the motion is based must be alleged specifically and the motion must be sworn. If you filed one of these unsworn over the summer, swear it.

The rest of the criminal week, quickly.

A.C. against the State, Fifth District, out of Brevard County. A mother was found guilty of indirect criminal contempt for three acts during a termination case: showing up at her children’s home to take them to dinner, sending reading books to their school, and filing a petition in California to enforce her old custody order. Vacated, with directions to find her not guilty. The only order against contact when she did the first two was a Connecticut order that was never domesticated in Florida, and one court can’t punish a contempt of another court. And by the time she filed in California, the Florida order barred direct or indirect contact with the children, which a court filing isn’t. The court’s line: contempt requires a violation of the letter of an order, not its spirit.

Johnson against the State, Third District, out of Miami-Dade. A second-degree murder conviction affirmed. The felon-in-possession count was valid because Johnson personally signed a stipulation to his felon status and acknowledged it in a colloquy, which satisfies the Florida Supreme Court’s Brown decision. His ineffective assistance claims go to postconviction. And notice a footnote: his motion for new trial was filed sixteen days after the verdict. Rule 3.590 gives you ten, so the trial court had no jurisdiction to hear it.

And State against Hernandez, Third District, a State win. In nineteen ninety-two the defendant received a withhold of adjudication on a lewd and lascivious offense and other counts, and his supervision ended in two thousand two. The registration statute then let a registrant petition for removal after twenty years. In twenty oh seven the Legislature changed it to twenty-five. He petitioned in twenty twenty-four under the old twenty-year rule, and the trial court granted it. Reversed. The amendment is procedural and regulatory, and he had no vested right, because in twenty oh seven he couldn’t have petitioned under either version. The court also held the State’s appeal is civil, agreeing with the Fourth District’s Garcia from September and disagreeing with the Second District’s Korson from twenty twenty-five. If you’re advising a client about registry removal, count twenty-five years.

Now the injury side, and it’s a lighter week, but there’s something in it for anybody pleading punitive damages.

Benedetto against Cuatt, Fourth District, out of Martin County, Judge Lott writing. A home sale fell apart, and the buyer recorded what she called a memorandum of contract, which clouded the sellers’ title and kept them from selling for two years. The jury awarded the sellers about three hundred sixty-two thousand dollars. On cross-appeal, the sellers challenged the denial of leave to plead punitive damages against both buyers.

Last episode I walked through the standard from the Florida Supreme Court’s Perlmutter decision this year: whether a reasonable person could conclude, from the claimant’s evidence, that the defendant committed intentional misconduct or gross negligence, and at that stage the judge doesn’t weigh the other side’s evidence. Applying that, the Fourth District split the two buyers. As to Xena Benedetto, the proffer was enough. It attributed to her preparing and recording a memorandum built from selected parts of the contract, leaving out the contract’s no-recording provision and its closing date, adding restrictive language, and then sending it straight to the closing agent on the sellers’ later sale. As to Cristian Benedetto, the proffer fell short. Nothing showed he created the document, knew what was left out, or directed its recording.

The practice point is in the split. A punitive proffer gets measured defendant by defendant. If you’re seeking punitive damages against two drivers, an owner and a driver, or a company and its manager, build the evidence of knowledge for each one separately, because a proffer that proves it against one of them can fail against the other.

Progressive Michigan Insurance against Holms, Sixth District, out of Collier County, Judge Kamoutsas writing. Progressive didn’t raise lack of personal jurisdiction in its first answer, got leave to amend to add it, and then moved to dismiss on that ground. A magistrate recommended denying both the plaintiff’s motion to strike and Progressive’s motion to dismiss, and the trial court approved. Progressive appealed under rule 9.130, which allows review of nonfinal orders that determine personal jurisdiction. Dismissed. The order didn’t actually decide whether the court had jurisdiction over Progressive, and it didn’t find a waiver either, so there was nothing to review. If you want an interlocutory appeal on personal jurisdiction, you need an order that decides it.

And one civil rule change, with a date to calendar. Effective January first, twenty twenty-seven, rule 1.280(k) now tracks the federal rule on signing discovery. Other parties have no duty to act on an unsigned disclosure, request, response or objection, and the court must strike it unless a signature is promptly supplied after the omission is pointed out. Check that your discovery templates get signed by an attorney of record, with an address, email and phone number.

One more thing before I let you go, because ten minutes of holdings is a digest, and this show doesn’t do digests. Every Friday this segment takes the one doctrine the week actually turned on and gets into the deep end. This week it’s the 911 call: when a caller’s report is enough to stop someone, and what that means for the DUI stop that starts with a dispatch.

Start with the U.S. Supreme Court. In Alabama against White, in nineteen ninety, an anonymous caller said a woman would leave a particular apartment building in a brown Plymouth station wagon with a broken right taillight, drive to a particular motel, and have cocaine. Officers watched her do exactly that and stopped her. The Court upheld the stop, because predicting her movements showed inside knowledge. But it called White a close case.

Then Florida against J.L., in two thousand, out of Miami-Dade. An anonymous caller said a young black male in a plaid shirt at a particular bus stop was carrying a gun. Officers found him, frisked him, and found the gun. The Court held the stop unlawful, and gave us the sentence that governs every tip case since: a tip has to be reliable in its assertion of illegality, not just in its tendency to identify a determinate person. An accurate description tells the police who the caller means. It doesn’t tell them the caller knows anything about a crime. And the Court said reasonableness is measured by what the officers knew before the stop. The gun turning up afterward doesn’t count.

Florida applied that in Baptiste, in two thousand eight. An anonymous caller reported a man waving a gun in front of a grocery store in Miami-Dade, and an officer stopped a man matching the race, gender and clothing at gunpoint. After the stop, a man walked up and said he was the caller, then disappeared. The Third District had said the anonymous tipster was transformed into a citizen informant. The Florida Supreme Court quashed that. It explained that a tip from a citizen informant who approaches police in person falls at the higher end of the reliability scale, for four reasons: the person may be motivated by a desire to further justice, can be held accountable for a false report, lets the officer judge their demeanor face to face, and exposes themselves to reprisal. But reasonable suspicion is measured at the moment of the seizure, and a caller who comes forward afterward can’t supply it. The stop violated the Fourth Amendment.

Now the case you’ll see cited against you in any DUI tip case. Navarette against California, twenty fourteen, five to four, Justice Thomas writing. A 911 caller said a silver Ford F-150, with a specific plate, ran her off the road. An officer found the truck about eighteen minutes later, roughly nineteen miles south, followed it for about five minutes without seeing any bad driving, and pulled it over. The Court upheld the stop, treating the call as anonymous. Three reasons: being run off the road means the caller claimed eyewitness knowledge, the report came soon after the event, and the 911 system records calls and lets police trace callers, so a false tipster would think twice. And running another car off the road resembles recognized drunk driving cues closely enough to create suspicion of an ongoing crime. Two limits in the majority opinion matter to you. Unconfirmed reports of driving without a seatbelt or slightly over the speed limit, the Court said, would be constitutionally suspect. And it said extended observation of an allegedly drunk driver might eventually dispel the suspicion, though five minutes didn’t. Justice Scalia dissented and predicted the rule police would take from it: so long as the caller identifies where the car is, an anonymous claim of a single instance of careless driving, called in to 911, will support a traffic stop.

Then back to Florida, and the two cases that show where the line sits. In Peterson, out of the Second District in twenty nineteen, the tipster was a known jail visitation clerk, and the court said her reliability wasn’t the problem. The stop still failed, because what she reported, a vague overheard conversation, didn’t describe a crime. The court noted that her description of the driver’s apparent impairment might have supported a DUI stop, but the deputy testified he wasn’t making a DUI stop. And this week, in Holliday, the Fifth District added a footnote you should use: the face-to-face reason in Baptiste, arguably the most important one, is defeated when a citizen calls rather than approaches police.

So here’s the working playbook.

First, get the call itself. Request the 911 recording, the CAD report and the dispatch audio, and compare what the caller said with what was broadcast. In Holliday, a tried doorknob became a burglary in progress somewhere between the caller and the deputies.

Second, classify the caller. Anonymous, named over the phone, or face to face, and when. Baptiste says a caller who identifies themselves after the seizure doesn’t count, and Holliday says a phone call isn’t the face-to-face tip that earns the top of the scale.

Third, separate identification from illegality. A matching plate, truck or shirt is J.L.’s determinate person. Ask what the caller actually said about the driving. Running a car off the road is Navarette. Weaving once, speeding a little or no seatbelt is the Court’s own list of reports that are constitutionally suspect.

Fourth, measure time and the officer’s own observations. How long from the driving to the call, and from the call to the stop? How long did the officer follow, and what did the officer see? Navarette leaned on contemporaneity, and it left open that a long stretch of clean driving can dispel the suspicion.

Fifth, if the stop fails, follow it through to every charge built on it. A suppression motion takes the evidence. Holliday shows that a resisting charge can fall with the stop itself, on a judgment of acquittal.

And the limit, stated plainly. Navarette went the State’s way, and in a 911 DUI case it’s the State’s best authority. You win these by distinguishing the content of the call and the officer’s observations. Those are the lines as the cases draw them, and some judges will draw them differently.

If you want the set, Alabama against White, J.L., Baptiste, Navarette, Peterson and Holliday, plus a one-page worksheet for taking apart a 911 stop built on those five questions, email me and I’ll send them over.

So that’s the week. A man walking his snakes, acquitted of resisting a stop the deputies never had grounds to make. A nanny whose felony murder conviction fell because the State never had to prove she knew. A First District opinion telling the Second District that judges don’t have to explain why they won’t depart. A sentence built on affidavits that had been withdrawn, a resentencing held without the defendant, and a c-four motion that has to be sworn again. A contempt finding that rested on the spirit of an order. On the injury side, a punitive proffer that worked against one buyer and failed against the other, an appeal with nothing to review, and a signature rule to calendar for January.

The pattern, if you want one: each of these turned on an element somebody assumed instead of proved. The lawful duty, the knowledge, the letter of the order, and the defendant in the room. When the State skips one, make it say so on the record.

One caveat, colleague to colleague. These are summaries, most of these decisions aren’t final until the rehearing window runs, and nothing in this episode is legal advice. Pull the opinion before you rely on a word of it.

If you want any of this week’s opinions, or the 911 stop worksheet from the deep dive, email me at Rory at the Safir lawyer dot com and I’ll send them over.

Take care of yourself, and take care of your clients.